April 16, 2011
How Not To Get Reinstated
Sue Bar Counsel, Assistant Bar Counsel and the complaining witness.
An order denying a petition from a single justice of the Maine Supreme Judicial Court. (Mike Frisch)
April 15, 2011
Don't Link PayPal To Your Escrow Account
This particular practice tip comes from a public reprimand issued to a Massachusetts attorney for misconduct relating to his handling of an IOLTA account.
According to this summary, the attorney was alleged to have "knowingly linked his IOLTA account to PayPal (a system permitting online payments for the purchases of goods over the internet), paid PayPal directly from the account, and negligently misused client funds."
The attorney's handling of his IOLTA account came to the attention of the bar as a result of notice of dishonor of two checks. The investigation revealed 16 PayPal deductions from the account. The attorney removed the IOLTA account from PayPal access and deposited funds to cover the deficiency. (Mike Frisch)
Certain Flaws But No Sanction....Yet
The Wisconsin Court of Appeals affirmed the dismissal of a civil case with the following admonitory language to plaintiff/appellant's counsel:
For future reference of appellant’s counsel, we also note certain flaws in the brief. The brief lacked sufficient citations to the record. See Wis. Stat. Rule 809.19(1)(d) and (1)(e). This deficiency makes the work of opposing counsel and the court more difficult than it should be. If the deficiency had been brought to our attention earlier by a motion to strike, we likely would have rejected the brief. The brief’s appendix also fails to provide the decision of the trial court, as required by Wis. Stat. Rule 809.19(2)(a). In spite of that obvious deficiency, appellant’s counsel signed a certification stating specifically, but inaccurately, that the appendix contained “the findings or opinion of the circuit court” and “oral or written rulings or decisions showing the circuit court’s reasoning regarding” the issues raised. We exercise our discretion not to impose a monetary sanction in this case, but caution counsel that similar filing in the future may lead to sanctions.
Fair warning. (Mike Frisch)
Judge On The Road
The Washington Post reports on reckless driving charges against a Montgomery County, Maryland District Court judge:
A Montgomery County District Judge was cited for reckless driving Thursday after another driver told police the judge had driven erratically and cut her off along an interstate during evening rush hour, according to Maryland State Police.
Judge Brian G. Kim, 49, noted in Rockville legal circles for running a tight courtroom, faces a fine but no jail time in connection with the Oct. 18 incident.
The other driver, a Rockville attorney, told police the incident started around 6 p.m. in downtown Rockville over a lane dispute, according to law enforcement sources and the State Police.
It continued westbound to Interstate 270. The victim eventually called 911 from her car, according to police.
Kim’s attorney, Barry Helfand, said he expected the judge to pay the fine on Thursday.
There is no indication that the victim has ever appeared before the judge.
In a written statement, the victim told police that the driver of a Honda CR-V was driving agressively, tailgating, swerving toward her, and braking hard in front of her car and pulling next to her while gesturing, according to police. The judge was identified using Motor Vehicle Administration records and the victim’s description of the driver, police said.
At one point, the victim said, she had to brake heavily and swerve to avoid a collision, according to sources.
Kim presides in District Court, which handles relatively minor crimes when compared with the Circuit Court across the street.
On the bench, he is known to encourage defendants to get their life together before more serious charges or penalties come down. “Is he strict? Yes,” said Helfland. “He wants people to listen to him.”
A Reasonable Belief, A Conflict Of Interest
An Illinois Hearing Board found a conflict of interest where an attorney had represented the buyer and seller in a real estate transaction, rejecting the attorney's contrary contentions:
We conclude the sellers were Respondent’s clients because they reasonably believed Respondent was their attorney, Respondent performed functions supporting that belief and there was no evidence Respondent took any actions to disavow that he was the sellers’ attorney. A client’s reasonable belief that an attorney is acting on their behalf is a significant factor in determining whether an attorney-client relationship exists. See In re Imming, 131 Ill. 2d 239, 253-54, 545 N.E.2d 715 (1989); In re Demuth, 126 Ill. 2d 1, 9, 533 N.E.2d 867 (1988). "An attorney-client relationship need not be explicit or expressed and is not dependent on the amount of time the client spends with the attorney, the payment of fees or execution of a contract, the consent of the attorney, or the actual employment of the attorney. Rather, the relationship can come into being during the initial contact between the layperson and the professional and appears to hinge on the client’s belief that he is consulting a lawyer in that capacity and his manifested intention to seek professional legal advice." Herbes v. Graham, 180 Ill. App. 3d 692, 536 N.E.2d 164 (1989).
Both sellers testified that they believed Respondent was their attorney and based on the evidence presented, we find their belief was reasonable. Respondent admitted that he prepared the closing documents, drafted the letter of direction instructing the title company how to distribute the sellers’ proceeds and was paid out of the sellers’ proceeds for his attorney’s fees. Both Mr. Moshin and Ms. Patel testified that Respondent was introduced to them as their attorney and that Respondent explained the closing documents to them and told them where to sign the documents. Additionally, Mr. Lopez testified that Respondent told him he was going to act as the attorney for both Mr. Lopez and the sellers to expedite the closing because the sellers did not have an attorney.
Respondent denied that he was introduced to Mr. Moshin and Ms. Patel as their attorney or that he explained the closing documents to Mr. Moshin and Ms. Patel and told them where to sign the documents. However, we find Mr. Lopez, Mr. Moshin and Ms. Patel, and not Respondent, credible. In re Smith, 168 Ill. 2d 269, 283, 659 N.E.2d 896 (1995) (the Hearing Board is in the best position to determine the credibility of a witness). The witnesses had no reason to lie and nothing to gain by testifying untruthfully. Some of Respondent’s testimony concerning his relationship with Mr. Pareja was successfully impeached and his credibility was damaged by his testimony regarding the letter of direction he wrote. Respondent testified that he drafted the letter of direction at the very end of the closing, but Respondent obviously wrote part of the letter after the first HUD-1 was drafted, because it reflects the sellers’ proceeds on the first HUD-1. Respondent also attempted to avoid answering some questions and held back information.
The hearing board recommends a three-month suspension. (Mike Frisch)
April 14, 2011
A Massachusetts attorney was suspended for 60 days for a series of criminal convictions and his failure to report the convictions to bar counsel within 10 days.
The summary from the web page of the Board of Bar Overseers notes a 2000 conviction for operating an uninsured vehicle, a 2006 conviction for driving on a suspended license, and a 2010 conviction that arose from "an event on July 19, 2008, when the respondent was observed to be operating a vehicle with no tires on the passenger side of the vehicle. Marijuana and hashish were discovered during an inventory search."
The attorney sought alcohol treatment after the last incident. The sanction was affected by his "demonstrated commitment to treatment..." (Mike Frisch)
A judge may appear in a television public service message, according to a recent opinion of Florida's Judicial Ethics Advisory Committee.
The Inquiring Judge, after presiding over Juvenile Delinquency Court, has become involved in speaking to and working with local groups about the need for focusing on parenting. The Inquiring Judge wishes to appear in a television public service announcement spot which identifies issues facing juveniles and parents. Additionally, the announcement will direct parents who want information or help to call Helpline 2-1-1, sponsored by 2-1-1 Big Bend, an independent nonprofit organization which provides confidential counseling, information and referral services. The persons are also told they can call 1-800-FLA-LOVE (1-800-362-5683), a parenting help line partially funded by the State of Florida, Department of Children and Family Services, but actually maintained and provided by 2-1-1 Big Bend.
The Inquiring Judge has submitted a television public announcement spot that has already been produced, as well as transcripts for two other prospective spots. The proposed messages are:
1. Did you know that the rate for juvenile crime goes up right after school is over between 2-6 in the afternoon? And that's the same time period your children are at greatest risk of being a victim of crime. Keep your children busy.
For information about after school programs or if you are having a parenting emergency and do not know what to do, call the parenting help line day or night. Because children grow better when their parents grow with them.
2. Did you know that nearly 1 in 3 children are considered over-weight or obese? And research shows that the type of food your children eat can affect their ability to learn....and can even affect their overall IQ?
For more information about child nutrition or parenting in general, call the parenting help line. Because children grow better when their parents grow with them.
3. To be successful, kids need guidance. But parenting can be a tough job and the right answers aren't always obvious. Some-times, you may feel helpless, exhausted, frustrated or angry.... and making decisions under those pressures often turn out disastrous.
If you are having a parenting emergency and don't know what to do, call the parenting help line day or night. Because children grown better when their parents grow with them.
The committee, as in the case of requests to vet campaign literature, will not screen any and all contemplated public statements of Florida's judges. Therefore, our advice to the Inquiring Judge will address only the propriety of the contemplated conduct of appearing in a public service spot.
...the Committee feels that the judge's proposed appearance in the public service announcement is not prohibited. However, the Inquiring Judge is cautioned to carefully examine all the provisions of the Code to ensure that the content of the comments are not otherwise prohibited.
D. C. Rule In Jeopardy
Those who are interested in the fair and efficient operation of the District of Columbia attorney discipline system should take note of a case now pending before the D. C. Court of Appeals. The case raises important questions about the viability of the recently-adopted rule permitting consent dispositions where the agreed-to sanction is less than disbarment. As is usual in matters of fairness and efficiency (or its converse), it is Bar Counsel versus the Board on Professional Responsibility.
The case is In Re Quinne Harris-Lindsey. It has been under investigation since 2002.
The case involves allegations of misappropriation. Bar Counsel and the accused attorney submitted a consent that conceded that the misappropriation was negligent. A hearing committee held a hearing and recommended a six-month suspension followed by probation. This was the agreed sanction and was fully consistent with prior sanctions for comparable conduct. The matter was submitted to the court. All this was consistent with the procedures for consent discipline.
Unfortunately for all concerned, the Court asked the Board for its views.
The Board's response was to recommend a full hearing on the matter. But that's not all. The Board proposes that the court virtually prohibit consent dispositions in misappropriation cases. In essence, the Board would prohibit any consent dispositions where Bar Counsel must make credibility determinations.
According to its Brief to the Court:
The Board...concluded that where the objective evidence raises serious questions about the respondent's degree of culpability and the proposed sanction would not be justified unless the respondent is deemed credible, the negotiated discipline should be rejected. Only in cases where the respondent's state of mind is clearly corroborated by the extrinsic evidence, and where there is no need to assess the respondent's credibility, is negotiated discipline appropriate. This is not such a case.
Where to start in reaction to this?
First, if you do not permit Bar Counsel to assess credibility, there's no point in having a consent disposition rule. Prosecutors always must make such judgments. Second, a hearing committee reviewed the matter and favored the consent. This is the independent review contemplated by the rule. Third, Bar Counsel is hired by the Board and serves at its pleasure. If you don't trust the one you have, get one you do trust. Fourth, the case is nearly a decade old. Fifth, there is nothing in the rule that indicates the limitations that the Board suggests.
The Board's approach will likely mean five more years until this particular matter is resolved. I'd be willing to give odds that it won't result in disbarment in 2016.
The conduct at issue dates back to 1995-99.
In D.C., the presumptive sanction for intentional or reckless misappropriation is disbarment. Negligent misappropriation usually draws a six-month suspension. The Board and Court have often found negligence in cases where observers (me, for instance) think the evidence established a greater degree of culpability. A notable example of the Board and Court finding negligence in the face of strong evidence of recklessness (as argued by Bar Counsel) is In re Anderson, linked here.
The great irony (and hypocrisy) here is that, if this matter were tried and Bar Counsel sought disbarment, the Board would (as in Anderson) likely reject the argument and recommend six-months.
One point seems to be that Bar Counsel can do no right. A second point is that the Board's institutional antipathy for consent dispositions (documented in my analysis of the D.C. disciplinary system under the header Plea Bargaining Fetishism) is in full flower.
I understand that implementation of the consent rule has been a bumpy ride to date. Perhaps all concerned (Board, Court and Bar Counsel) share some responsibility for the current mess. Perhaps part of it is a good faith disagreement about the best way to use the process. But, in the end, a rule that gives Bar Counsel no meaningful discretion to evaluate credibility is useless.
Given the glacial pace of D.C. bar discipline, consent discpositions are a necessary tool. I can only hope that the Court sees the light here and decides the case in a manner that will promote, not impair, fairness and efficiency. The Board's approach will gut the one tool given Bar Counsel to resolve cases by agreement and save limited resources for the cases that require a plenary hearing.
You can find the hearing committee and Board reports at this link. You must insert the attorney's full name to access the reports. (Mike Frisch)
April 13, 2011
The Wyoming Supreme Court reversed a criminal conviction for larceny due to prosecutorial misconduct in the cross-examination of the defendant. The prosecutor had repeatedly asked the defendant if the witnesses against him were lying. The court noted that prior Wyoming law clearly forbade the technique. The result was not affected by the trial counsel's failure to object.
The defendant had testified that he had no memory of the events at issue, which started with the victim giving the defendant a hitchhike pick up (a "dummied up" decision) and then some work. The kind gestures were repaid by the crime.
The prosecutor's closing argument called the defense case a "CRS Defense." The initials stand for "I Can't Remember Sh*t." (Mike Frisch)
Law Student Prosecutor Immune From Civil Suit
A third-year law student intern who prosecuted an assault case under a student practice rule is entitled to immunity from a civil suit filed by the defendant, according to a recent decision of the Montana Supreme Court. The attorney who authorized the representation also was absolved of liability.
The court affirmed a lower court dismissal of the suit:
Spreadbury asserts on appeal that summary judgment was inappropriate because (1) an unlicensed law student may not act as a lawyer in a criminal proceeding; (2) prosecutorial immunity is not available to the law student and her supervisor; (3) the District Court erred in ignoring his claim of criminal contempt based on Wetzsteon’s violation of the Student Practice Rule; and (4) Corn, as Wetzsteon’s supervisor, was personally liable under the Student Practice Rule in the event Wetzsteon is found to be in violation of the Rule.
In granting Wetzsteon and Corn’s motion for summary judgment, the District Court, without analysis, concluded Wetzsteon and Corn had prosecutorial immunity from all of the claims raised by Spreadbury. The court further concluded that Spreadbury presented no facts creating a material question; rather, he merely set forth speculative and conclusory statements. As such, the District Court ruled Wetzsteon and Corn were entitled to summary judgment as a matter of law. The court dismissed Spreadbury’s complaint with prejudice.
Reviewing the record in this case and the relevant provisions of the Student Practice Rule, we conclude neither Wetzsteon nor Corn violated the Rule. Additionally, had Wetzsteon or Corn failed to strictly comply with the Rule, Spreadbury has presented no legal authority to support his argument that such lack of compliance deprives a student prosecutor or the supervising prosecutor of prosecutorial immunity.
The defendant was charged with assault. He was convicted in absentia when he failed to appear for trial after the case had been continued over his objection. The conviction was overturned on appeal based on a speedy trial violation (Mike Frisch)
Judge Faces Ethics Charges
Ethics charges have been filed against a Tennessee juvenile court judge.
One count alleges that the judge testified before a legislative body and engaged in fundraising in favor of a Citizen's Heritage Display in the courthouse lobby of the Hawkins County Justice Center. Another count alleges that the judge was held in contempt by the Court of Criminal appeals for his handling of a client's matter. A third count alleges that the judge failed to respond to the complaint in writing.
TriCities.com has this quote from the judge:
"The Court of Judiciary and I disagree over what is an appropriate role for me to have in the Foundations of American Law and Government Display project for Hawkins County. Specifically, the Court of Judiciary has questioned whether I should have answered a question posed to me by a member of the Hawkins County Commission during a commission meeting last year. Although the Court of Judiciary and I may disagree over what is an appropriate role, as a member of the judiciary I do look forward to resolving this issue with them.
Regardless of what role the Court of Judiciary ultimately decides is appropriate for me to have in the Foundations Display, I am proud of our community and it's interest in seeing the Display made, and I am proud to be a part of it."
The Rogersville Review reports on a recently-filed federal lawsut against the judge.
The judge's campaign web site is linked here. (Mike Frisch)
From the web page of the Ohio Supreme Court:
For the first time, anyone interested in education and training from the Supreme of Ohio Judicial College can browse courses, access material, register and take selected courses entirely online, all without leaving home or office.
The Judicial eCademy launched this week, the culmination of more than a year of work and planning to increase training options for local judges and other parties, improve efficiency and reduce costs.
The Judicial College has offered online registration to judges and magistrates since February 2009. The new system extends the convenience to court personnel, guardians ad litem and others whose education needs are served by the Supreme Court, while providing courses and educational materials to all users.
“In these difficult budgetary times, we must continue to innovate and find ways to use technology to do an even better job for less money,” said Supreme Court of Ohio Chief Justice Maureen O’Connor. “The Judicial eCademy enables us to educate and train judges, magistrates, court personnel and other partners in the court system while reducing travel expenses to local courts and reducing printing costs.”
Judicial eCademy users can browse the Judicial College catalog of traditional and online courses and register online for any course. Users will be able to download items from an archive of past course materials available soon on the site.
Judicial College Director Milt Nuzum said not only can users meet some of their continuing education requirements by completing coursework on the new site, but the convenience will be attractive too.
“Judicial eCademy users can take some of the online courses at home or at the office anytime that’s convenient for them,” he said. “They can stop the course midstream if they want to research a little more about a particular aspect and pick up the session later.”
While the Judicial College will seek to add courses to its distance learning inventory over time and acquire existing courses, Nuzum said the Judicial College courses will continue offering most courses in the traditional, classroom setting. The Judicial eCademy will serve as a one-stop shop for all judicial training and education available from the Judicial College. To explore the Judicial eCademy, visit http://judicialecademy.ohio.gov/.
How Not to Retire and Teach at Tennessee: Visiting Professorship in Business Law
Posted by Jeff Lipshaw
There's an interesting opportunity to dip one's toes in academic waters (see Memo to Lawyers: How Not to "Retire and Teach" for an appetizer and Becoming a Law Professor: A Candidate's Guide for the whole meal). Note the preference specified in the ad (my emphasis). Tennessee (under the leadership of Joan Heminway and George Kuney) has a first-rate business law program, and it would be a tremendous experience for the aspiring academician:
The University of Tennessee College of Law invites applications for a one-semester visiting faculty position, to commence in the spring semester of 2012 to teach Business Associations or Secured Transactions and another business law related course of their own choosing through the Clayton Center for Entrepreneurial Law.
JOB QUALIFICATIONS: Successful applicants must have a strong academic and practice background. Preference may be given to those applicants who are seeking to enter the academy from private practice. In furtherance of the University's and the College's fundamental commitment to a diverse faculty, minority group members and women are strongly encouraged to apply.
APPLICATION PROCEDURE: Applications, including a letter of intent, resume, and the names and addresses of three references, should be sent to:
CONTACT: George W. Kuney W.P. Toms Distinguished Professor of Law and Director of the Clayton Center for Entrepreneurial Law The University of Tennessee College of Law 1505 W. Cumberland Avenue Knoxville, TN 37996-1810
The University of Tennessee is an EEO/AA/Title VI/Title IX/Section 504/ADA/ADEA institution in the provision of its education and employment programs and services. All qualified applicants will receive equal consideration for employment without regard to race, color, national origin, religion, sex, pregnancy, marital status, sexual orientation, gender identity, age, physical or mental disability, or covered veteran status.
April 12, 2011
High Quality, Low Cost Assistance
A Colorado Hearing Board has ordered a public censure of an attorney for lack of diligence, but had some sympathy for the attorney:
...we find most of the allegations in the People's complaint are not supported by clear and convincing evidence. Rather, we find that Respondent provided high-quality, low-cost assistance to the [client/complainant]. Indeed, the legal profession and the public are well served when lawyers provide representation to clients like [the complainant] who might otherwise not have access to the courts. Discounted fees, however, do not excuse attention to detail. Despite our opinion that Respondent is a capable and well-intentioned lawyer, the Hearing Board is concerned that [he] demonstrated poor organizational skills in representing [the complainant]. Effective representation of clients necessitates close attention to the less glamorous aspects of legal practice. Respondent's lack of organization, if not corrected, could seriously harm clients and lead to the impositioon of more severe discipline. We strongly encourage Respondent to persevere in the measures he has instituted to improve organizational and administrative skills.
Tripartite Attorney-Client Relationship
The North Carolina Supreme Court recognized the existence of an attorney-client relationship between an association member, the association and an attorney retained by the association on the member's behalf. The court reversed and remanded a decision of the Court of Appeals.
The member was a police officer who was demoted after reporting a fellow officer's misconduct. He also alleges that he was assaulted by the chief of police. He contacted the legal department of the Southern States Police Benevolent Association and spoke to an attorney there. Ultimately, he was referred to outside counsel.
The court held that the tripartite relationship created an attorney-client relationship much like in an insurer-beneficiary situation. The interests of the member and the association are "closely aligned."The policy interests that favor the privilege prevail:
Recognizing an attorney-client relationship in this context is essential to the role of advocacy and benevolence associations like the SSPBA. Without such a relationship confidential statements made by individuals seeking assistance from advocacy organizations would be unprotected and discoverable in litigation. The possibility of disclosure of such communications would chill the flow of information to these groups and hinder their purpose of promoting and protecting the interests of members and individuals.
The court remanded for an in camera review by the trial court to determine the applicability of the asserted claims of privilege. (Mike Frisch)
April 11, 2011
An Illinois Hearing Board rejected most of the Administrator's charges against an attorney for his conduct in seeking fees from the firm where he had worked as an independent contractor.The hearing board describes the allegations:
All of the charges in this case arise out of a dispute between Respondent and his former law firm, D-L, over fees. Respondent had worked for the firm as an independent contractor for several years before he was terminated. Thereafter, he sought to collect attorney’s fees for work he had done prior to his termination. Although the Complaint includes some allegations regarding liens that he filed in other matters, most of the charges center on Respondent’s efforts to collect a portion of the fees awarded as part of the class action settlement in the Eckhaus case. The Administrator alleges that, in an effort to collect on these claims, Respondent filed frivolous litigation, offered false evidence, made misrepresentations, and improperly attacked the integrity and qualifications of a judge. Respondent was specifically charged with the following misconduct: 1.) bringing a proceeding, or asserting or controverting an issue therein, when there is no basis for doing so that is not frivolous, and without a good-faith argument for an extension, modification or reversal of existing law, in violation of Rule 3.1; 2.) making a statement of material fact or law to a tribunal which the lawyer knows or reasonably should know is false, in violation of Rule 3.3(a)(1); 3.) offering evidence that the lawyer knows to be false, or failing to take remedial measures when the lawyer comes to know of the falsity, in violation of Rule 3.3(a)(4); 4.) making a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge in violation of Rule 8.2(a); 5.) engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation inviolation of Rule 8.4(a)(4); 6.) engaging in conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5); and 7.) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute in violation of Supreme Court Rule 770.
The only charge that the hearing board sustained was the Rule 8.2 violation. The basis was this attack on a judge:
Respondent filed a Motion for Substitution of Judge for Cause and for Transfer of the Action to the Circuit Court of Cook County. That motion included, inter alia, the following statements:
- Although the court’s disregard for the law in all of its various manifestations has been indiscriminate, ignoring cases, statutes, procedural rules, principles of sound public policy, controlling United States Supreme Court precedent on issues of federal law, and both state and federal constitutional authority, it may be asserted that even such judicial roguery should not necessarily occasion a motion to remove a judge from a case for cause.
- Nor, further still, in isolation, it could be argued, should a judge’s failure to apply logic and reason to a legal matter necessarily require removal for cause.
- [T]he Judge’s conduct of this matter has from the beginning been tainted by his evident and apparently profound dislike of me.
- There was, on the Judge’s part, given the complexity of the issues raised, an appallingly hasty rush to judgment that can only be explained through bias and, literally, "pre-judging."
- The proceedings, in short, have been irredeemably corrupted by prejudice and disdain for one party and the concomitant elevation of the interests of one party over the other.
- Where judiciousness, thoughtfulness, and restraint have been called for, instead the Judge has displayed contempt for one party and demonstrated an inability to adjudicate the matter according to law as the Rules of the Illinois Supreme Court and the Code of Judicial Conduct require.
- Any litigant deserves to have their matter decided according to the law and not the whims of a judge whose actions have been clouded by bias and his reason betrayed by prejudice. "According to law" means citations to authority; it means actually reading briefs; it means giving reasons when ruling; and it means conducting the matter with fairness and impartiality. These basic duties have been ignored in this matter.
- The conduct of this matter by Judge Dudgeon has been—no other word—a disgrace.
Although he acknowledged filing this motion, Respondent testified that he never actually presented it for hearing.
The hearing board recommended a censure and completion of the ARDC course in professionalism.
A panel of the Arkansas Supreme Court Committee on Professional Conduct has ordered a reprimand of an attorney for his handling of a breach of contract matter against a contractor who had been hired to apply latex siding to the client's home.
The attorney came to the client's home to inspect the damage. He told her the fee would be %3,500. She offered to write him a check but "he advised her he only accepted cash." She brought the cash to him on the next day and was given a receipt.
There was no written fee agreement and the advanced payment was not escrowed until earned. Indeed, the client thereafter spent years trying to contact the attorney. She finally was able to meet with him but "[n]othing changed after the meeting." The client eventually paid another contractor $17,000 to repair the damage.
According to the panel, "[the attorney] has done nothing but string along [the client] for years. There has been no real effort undertaken on her behalf. She has been provided false information for years."
The attorney explained that the case presented challenges and that "the defendant in the lawsuit is a wealthy and powerful man who owns a lage realty company with his wife and barely lost an election for County Judge." He "remains committed to winning the case for her with a collectable judgment." (Mike Frisch)
A Question Of Fact
A case summary from the Kentucky Court of Appeals:
The Court reversed and remanded a summary judgment in favor of a lawyer and law firm on appellant’s claim for reimbursement of all or part of a $10,000 fee paid during representation of appellant in a criminal matter after he plead guilty in lieu of going to trial. The Court held that the written fee agreement between the parties for trial preparation and trial, consisting of letters between the parties, was ambiguous as to the question of whether appellant would be entitled to a partial reimbursement of the subject fee in the event that the case did not proceed to trial. In light of the ambiguous nature of the parties’ fee agreement, there were genuine issues of material fact that could not properly be resolved via summary judgment. Because the parties did not create a fee contract that addressed the issue of who was entitled to what in the event that a trial did not take place, the question would have to be resolved by a finder of fact.
The opinion is linked here. (Mike Frisch)
Enhanced Sanction is...Reprimand!
The New Jersey Supreme Court followed a recommendation of its Disciplinary Review Board and imposed a reprimand in a matter who never returned $250 held in escrow. The money had been returned to the attorney from the lawyer for the buyer in a real estate transaction and involved a water bill that had been paid. The attorney failed to return twenty phone calls and letters from his clients and failed to respond to their ethics complaint. He defaulted in the ensuing bar proceeding.
The board states:
For respondent's lack of diligence, failure to communicate with the clients, failure to promptly return thier funds, and failure to reply to the grievance, only an admonition might have been sufficient. Here, however, there is the additional element of the respondent's default. In a default matter, the appropriate discipline for the found ethics violations is enhanced to reflect the attorney's failure to cooperate with disciplinary authorities as an aggravating factor... We, therefore, determine that a reprimand is the appropriate discipline in this case.
It appears from the board report that the clients never got the $250 back.
Is a reprimand really sufficient here? (Mike Frisch)
Republication of Phil Schrag's classic book on consumer scams and ripoffs
Protect the consumer. Stop the schemes and ripoffs. Make law work for the little guy. All easier said than done.
Memoirs and case studies of fraud schemes and consumer protection from an insider who helped to found New York City’s first consumer watchdog agency, Counsel for the Deceived is a funny, candid account of fraud and institutional paralysis written by a then-newby lawyer, the city’s Consumer Advocate. Philip Schrag was appointed by former Miss America Bess Myerson to defend consumer rights. In six case histories, he documents the schemes of the “commercial underworld” and the inability of courts and government agencies to respond in time.
This 40th anniversary edition of a classic book adds thoughtful new material: a foreword by Marc Galanter (University of Wisconsin) and a preface by the author. The book features the original introduction by Ralph Nader.